1. Money Suit No. 9/4 of 1962/64 was fixed for hearing in the Court of the Subordinate Judge at Barh on the 9th June, 1965. On this date, a time petition was filed by the plaintiff opposite party but that was rejected. Her lawyer then intimated to the Court that he was ready and a hazri of one witness was filed. The case was opened P.W 1 was examined cross-examined and discharged, when the opposite party was asked to produce her other witnesses her lawyer expressed his inability to do so, as no other witness was present in Court. He again filed a time petition. That was rejected. It appears that thereafter he withdrew from the case. The defendant's witness was examined, but since the plaintiff's lawyer did not cross-examine him he was discharged. Arguments were advanced ex parte on the side of the defendant. The plaintiff's lawyer did not even advance arguments. The learned Subordinate Judge, however, considered the evidence adduced before him and dismissed the suit on merits by his judgment delivered on the 12th June, 1965.
2. First Appeal No. 226 of 1965 has been filed in this Court by the opposite party on the 13th July, 1965, from the judgment and decree, dated the 12th June, 1965, of the Court below by which it has dismissed the suit. Two days later, that is, on the 15th July, 1965, the opposite party filed an application under Order 9, Rule 9 of the CPC, hereinafter referred to as ‘the Code’, for setting aside the dismissal of the suit and its restoration to its original file. This application, in spite of the opposition of the defendant-petitioner, has been allowed. Hence, he has come up in revision to this Court. Three points have been urged in support of this application by Mr. Mazhar Hussain, learned Advocate for the petitioner: (1) that the application under Order 9, Rule 9 of the Code was not maintainable in view of the fact that the Court below had taken recourse, and Quite rightly in his submission, to the procedure prescribed under Rule 3 of Order 17 of the Code; (2) that the application under Order 9. Rule 9 of the Code was barred by limitation and the learned Subordinate Judge has arbitrarily condoned the delay under Section 5 of the Limitation Act, 1963; and (3) that there was no sufficient cause for non-appearance of the opposite party and not proceeding with the hearing of the suit after examining one witness.
3. I do not propose to express any opinion of mine on the third submission made on behalf of the petitioner, as, in my opinion, that is largely a question of fact and even if I were to express an opinion of mine in that regard, I shall not be able in any event to upset the decision of the Court below in exercise of my revisional powers.
4. In my judgment, however, the other two contentions made on behalf of the petitioner are well grounded and have got to succeed. The hearing of the suit had commenced when the first time petition filed on behalf of the opposite party was rejected by the learned Subordinate Judge. She became ready to proceed with the case as her lawyer not only opened the case but also examined a witness who was available and present. In the midst of the hearing, he withdrew from the case it is not for me to say in this civil revision whether the Court below on the facts and the circumstances of the case ought to have granted an adjournment to the opposite party because that is a matter which may fall for consideration of the Bench hearing the first appeal filed by the opposite party; but for the purpose of the disposal of the civil revision application, it is plain that the hearing of the suit had commenced. The defendant's witness also was examined, and the suit was actually dismissed on merits. In that view of the matter, the learned Subordinate Judge was justified in laking recourse to the procedure prescribed under Rule 3 of Order 17 of the Code and dismissing the suit on merits. The application under Order 9. Rule 9 of the Code therefore, was not maintainable for setting aside the decree, dated the 12th June, 1965 and restoration of the suit to its original file.
5. In Mahabir Prasad v. Sheodayal Pathak, AIR 1928 Pat 167, it has been pointed out by Das with whom Kulwant Sahay, J., had agreed:
“It is well established that O. 17. R. 3, only applies where the hearing of a suit has commenced and an application for an adjournment is then made by one of the parties. It is also established that when before the hearing of a suit is commenced the plaintiff fails to appear on an adjourned date, the Court has to proceed under R. 2 and not R. 3.”
6. I may in this connection make reference to some other Patna decisions, namely, Sashibhushan Kumar v. Dwarka Prasad, AIR 1922 Pat 2, Union Of India… v. Mangilal Jain…., AIR 1959 Pat 342, and Magan Singh v. Deonandan Missir, AIR 1963 Pat 83.
7. In the last case, reliance was placed upon two Full Bench decisions one of the Madras High Court and the other of the Bombay High Court in P.B Pichamma v. K. Sreeramulu, AIR 1918 Mad 143(2) (FB) and Basalingappa Kushappa v. Shidramappa Irappa, AIR 1943 Bom 321 (FB). On examining the ??? of all these cases, it would be noticed that in none of them the party at default had taken part in the hearing of the case in that sense of adducing any evidence or advancing arguments in AIR 1922 Pat 2, the plaintiff's lawyer had merely opened the case but was not ready with any witness to proceed with the hearing of the case. The Court below had taken the defendant's evidence and then dismissed the suit on merits. It was observed by Das, J. who delivered the judgment of the Bench, that on the pleadings of the parties the suit may have failed because the onus was on the plaintiff to prove his case. That being so merely because the plaintiff's lawyer opened the case, the Court below was not justified in taking recourse to the procedure prescribed under Order 17. Rule 3 of the Code and the dismissal of the suit, in effect, was under Rule 2 of Order 17 of the Code
8. In AIR 1959 Pat 342, it was again pointed out by a Bench of this Court that it is not obligatory for a Court to take recourse to Rule 3 of Order 17 in all cases even if that rule is attracted. That may be so, but none of these cases has taken the view that if in a situation like the one with which I am dealing in this case the Court took recourse to the procedure prescribed in Rule 3 of Order 17 of the Code, the action of the Court was either illegal or unjust. In that view of the matter, reliving upon the principles laid down in the several cases of this Court, referred to above, I hold that the dismissal of the suit in the present case was on merits and an order passed under Order 17, Rule 3 of the Code, dismissing the suit had the force of a decree subject to appeal only and it was not liable to be set aside by taking recourse to the procedure prescribed under Order 9, Rule 9 of the Code.
9. A contrary view seems to have been taken with some amount of hesitation by a Bench of the Calcutta High Court in Aktar Hossain v. Sm. Husseni Begam, AIR 1933 Cal 73, where under similar circumstances as the one in the instant case it was held that not necessarily Order 17, Rule 3 of the Code was attracted and that the procedure prescribed in Order 9, Rule 9 of the Code for restoration of the suit was available. But I do not think that in face of so many Patna decisions laving down the principles of law and specially the view expressed by a Bench of this Court in AIR 1928 Pat 167, I shall be justified in giving preference to the decision of the Calcutta High Court as has been done by the learned Subordinate Judge in his order under revision.
10. The application under Order 9, Rule 6 of the Code was obviously barred by limitation also as having been filed beyond thirty days of the 12th June, 1965. The delay in filing such an application could not be condoned under Section 5 of the Limitation Act, 1908 but it can be condoned under the new Limitation Act. The only reason for condoning the delay recorded by the learned Subordinate Judge, to quote his own words, is to the following effect:
“the plaintiff-appellant is a Parda Nasin Muslim childless lady living separate from her husband and has been on bad terms since long before the institution of the suit and so it is fit case in which the discretion of the Court should be exercised in her favour and the period of limitation be extended u/s. 5 of the Limitation Act of 1963 by three days.”
11. In my opinion, the learned Subordinate Judge has neither discussed any evidence nor recorded any finding that sufficient cause has been made out in order to enable him to condone the delay and the facts stated by him for doing so may only induce a court of law to take a liberal view in favour of the lady who is the opposite party before me.
12. But that is no ground to say that she was prevented by any sufficient cause for not filing her application within thirty days from the date of the dismissal of the suit, rather no facts have been found to show any cause for not filing the petition within the prescribed time.
13. In the result, I allow the application in revision and set aside the order, dated the 22nd September, 1965, of the learned Subordinate Judge made in Miscellaneous Case No. 8 of 1965 setting aside the order of dismissal made in Money Suit No. 9/4 of 1962/64 and restoring the suit to its original file. I shall make no order as to coats.
FK/VPP/G.G.M
14. Petition allowed.